We publish blogs and social media posts to give a general overview of legal and commercial issues, relevant at the time of publication, which we hope you will find interesting. Please note that legal rules often change depending on the specific facts of a situation. The law also changes over time following changes in legislation or new court cases. We do not actively update our blogs or posts once they are published to reflect changes in the law.

As such, our blogs and posts are not intended to advise you on the law and must not be relied upon as legal advice. If you require advice on a particular issue then please contact us and we will be pleased to help.

The Government has made changes to statutory sick pay requirements to alleviate pressure on GP’s following the rise in Omicron cases. The Government has also reintroduced the Coronavirus Statutory Sick Pay Rebate Scheme.

What are the changes to the statutory sick pay rules?

The Government has introduced the Statutory Sick Pay (Medical Evidence) Regulations 2021 which came into force on the 17 December 2021. Read the updated Government guidance on SSP.

With effect from 17 December 2021, an employer cannot request medical evidence from an employee who is absent from work due to sickness until they have been absent for 28 days or more. This period of 28 days includes non-working days (i.e. weekends and bank holidays). Following this 28 day period, fit notes should be provided in the usual way.

The new regulations apply to absences which commence prior to the regulations coming into force on 17 December 2021 but which have not lasted more than seven days on that date. In effect, this means that if the period of absence began on or after the 10 December 2021 it will be covered.

Anyone who was already signed off work via their GP prior to this time will need to continue to obtain usual fit notes when their existing ones expire.

The changes apply in England, Wales and Scotland.

Why have the changes been made?

The new regulations have been implemented as a temporary measure to increase capacity for GP’s to focus on administering the booster vaccination following the increase in Omicron cases.

How long will these measures last for?

The regulations are temporary. They will not apply to absences which begin after the 26 January 2022. We will update this blog if any extensions to this timeframe are announced.

How does this impact on company sick pay?

Employers will need to consider how the new legislation interacts with any company sick pay policies that are in place. The application of this will depend on the situation and terms of the company sick pay rules in force. Some company sick pay policies will require an employee to provide a fit note in order to be eligible for company sick pay. Whilst it remains possible for an employee to obtain a fit note from their GP, they may now be required to pay for it.

What does this mean for employers?

The changes represent a significant increase from the usual 7-day self-certification period, following which employees were expected to provide evidence of their incapacity to their employer. This was typically obtained through a fit note from their GP. Some employers may be concerned about the impact that the changes could have on their staffing levels over coming weeks. Many employers, particularly within the hospitality sector, have already faced significant disruption following the recent rise in Omicron cases.

If employers have concerns over the genuineness of an employee’s sickness they will no longer be able to request a fit note until an employee has been absent for 28 days. If they have concerns during this initial 28 day period then they could consider obtaining an occupational health report, although this, in itself, takes time. Therefore, whilst this measure will undoubtedly assist in taking the pressure off GP’s for understandable reasons, it does leave employers in a difficult situation.

What is The Coronavirus Statutory Sick Pay Rebate Scheme (SSPRS) and why is it being reintroduced?

The Government has also announced the reintroduction of the Coronavirus Statutory Sick Pay Rebate Scheme (the Scheme), which had previously closed in September 2021. This is intended to be a temporary scheme to support employers facing heightened levels of sickness absence due to COVID-19.

This Scheme will repay employers the current rate of SSP paid to current or former employees for periods of sickness starting from 21 December 2021.

Employers will be able to claim the costs for up to two weeks of SSP per employee that has to take time off because of COVID-19. This two-week limit will be reset so an employer will be able to claim up to two weeks per employee regardless of whether they have claimed under the previous scheme for that employee.

Further guidance is awaited.

Who Qualifies for the Scheme?

The Scheme can be used by employers if:

1. they are UK-based;
2. they employed fewer than 250 employees as of 30 November 2021;
3. they had a PAYE payroll system as of 30 November 2021; or
4. they have already paid their employees’ COVID-related SSP.

Employers will be able to make a claim through HMRC from mid-January onwards by visiting the “Claim back statutory sick pay paid to your employees” page.

What records must be kept?

Employers should keep records of all SSP payments they want to claim from the Scheme for at least three years following a claim. These records include the reason why an employee could not work, the period during which an employee could not work (including the start and end dates), details of an employee’s SSP qualifying days, and National Insurance numbers of all employees who have been paid SSP.

We will update this blog with more guidance when it is available. In the meantime if you would like any further advice please contact a member of the Employment team.